On Petition for Review of Order of Illinois Educational Labor Relations Board No. 2011-CA-0088-C

Presiding Justice Hyman and Justice Neville concurred in the judgment and opinion.

OPINION

MASON, JUSTICE.

¶ 1 Petitioner Board of Education of the City of Chicago (Board) seeks direct administrative review of the finding of the Illinois Educational Labor Relations Board (IELRB) that it committed an unfair labor practice when it refused to release student records during a grievance proceeding arising out of the Board's termination of a member of the Service Employees International Union, Local 73 (Union). On direct appeal to this court pursuant to Illinois Supreme Court Rule 335 (eff. Feb. 1, 1994) and section 3-115 of the Code of Civil Procedure (735 ILCS 5/3-113 (West 2010)), the Board argues that section 6 of the Illinois School Student Records Act (105 ILCS 10/6 (West 2010)) (Student Records Act), prohibited it from releasing student records without a court order, notwithstanding the Union's willingness to accept redacted version of the records. The Board further contends that its one-time refusal to provide the records did not constitute an unfair labor practice. For the reasons that follow, we reverse.

¶ 2 BACKGROUND

¶ 3 This case arises out of the February 2010 termination of Clinton Cooper, a school security officer at Emil G. Hirsch High School. The Board discharged Cooper, a union member, on the grounds that he initiated physical altercations with two students, D.E. and R.G. The Union initiated a grievance proceeding stemming from this discharge. As a basis for challenging Cooper's termination, the Union contended that the altercation with R.G. never occurred and the second altercation was initiated by D.E. Specifically, the Union believed both students had been disciplined for lying and that D.E. had a history of violence and was expelled following Cooper's termination as a result of a fight with school staff.

¶ 4 After exhausting the initial steps of the grievance procedure outlined in the parties' collective bargaining agreement (CBA), the Union proceeded to arbitration. In preparation for the arbitration, the Union propounded document requests on the Board in September 2010. The Board turned over most of the requested records, but declined to produce the disciplinary records of D.E. and R.G. on the grounds that the records were confidential. In response, the Union indicated its willingness to accept redacted files omitting the students' surnames. The Union also assured the Board that the documents would remain confidential pursuant to section 3-5.3 of the CBA, which requires all grievances to be processed confidentially.

¶ 5 When the Board still declined to turn over the records, the Union moved before the arbitrator for execution of a subpoena duces tecum for the disciplinary files of the two students. In its motion for execution of the subpoena, the Union stated it would accept versions of the records referring to the students only by their initials. On February 18, 2011, the arbitrator executed the subpoena, but the Board persisted in its refusal to provide the documents. However, the Board indicated that it would comply if an order was issued by a court.

¶ 6 The Union declined to seek an order from the court and instead filed an unfair labor practice charge against the Board on March 18, 2011. The Union also went forward with the arbitration on April 4, 2011, and on May 11, 2011, the arbitrator ordered that Cooper be reinstated.

¶ 7 In its charge of unfair labor practices, the Union alleged that the Board's decision to withhold the students' records violated section 14(a)(5) of the Illinois Educational Labor Relations Act (115 ILCS 5/14(a)(5) (West 2010)) (the Labor Relations Act), which requires an employer to bargain collectively in good faith with an employee representative. In its answer to the charge, the Board argued that under the Student Records Act it was prohibited from releasing student disciplinary records without a court order. The Board further argued that the controversy was moot in light of the arbitrator's decision reinstating Cooper. The parties agreed to proceed on a stipulated record in lieu of a hearing and submitted posthearing briefs to the administrative law judge (ALJ). After finding no issues of fact, the ALJ referred the case to the IELRB for decision.

¶ 8 The IELRB determined that the Board's confidentiality concerns were mitigated in light of the Union's agreement to accept redacted records and keep the contents of those records confidential. Accordingly, the IELRB found that the Board committed an unfair labor practice and ordered the Board to turn over D.E. and R.G.'s records to the Union and to post a notice to employees informing them of their rights. In addition, the IELRB found that the matter was not moot, citing Grand Rapids Press, 331 N.L.R.B. 296, 300 (2000), where the National Labor Relations Board held that an evaluation of a union's right to requested information must be based on the situation which existed at the time the request was made, rather than the situation which exists at the time that right is vindicated.

¶ 9 The Board filed a timely petition for review of the order. The Chicago Teachers Union was permitted to filed an amicus curiae brief in support of the IELRB and the Union.

¶ 10 ANALYSIS

&para; 11 The overarching issue on appeal is whether student disciplinary records are protected from disclosure under the Student Records Act during grievance proceedings before the IELRB.[1]Resolution of this question necessarily requires interpretation of the Student Records Act. Ordinarily, such questions of law are subject to de novo review. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill.2d 191, 204-05 (1998); see also County of Du Page v. Illinois Labor Relations Board, 231 Ill.2d 593, 603 (2008) (statutory interpretation subject to de ...

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